Commonwealth v. McLaughlin

Dewey, J.

For the reasons already stated in the ease of the same party for a felonious assault on William Blanchard, neither a motion to quash this indictment, or the more appropriate motion here, to arrest the judgment for misjoinder of *618counts, can avail the defendant. If there was no further question in the case, judgment should be entered upon this verdict.

Another point is raised upon the bill of exceptions in relation to certain instructions asked by the defendant to be given to the jury bearing upon the question of the guilt of the prisoner upon the indictment, so far as he is charged with an assault with intent to murder. If the prisoner was unlawfully arrested, and in resisting the arrest, or in attempting to escape, betakes the life of the party so arresting him, although the act is not justifiable, and amounting in law to a criminal homicide, yet it is not murder. Commonwealth v. Carey, ante, 246. Peace officers may, without warrant, arrest a party whom they have reasonable ground to suspect of having committed a felony. But a peace officer' cannot arrest one without warrant, who is suspected of having committed a crime, not a felony. The presiding judge had instructed the jury as to the first of these propositions. The defendant’s counsel asked the further instruction, that if he was arrested upon suspicion of a crime not a felony, then the assault which he might make while attempting to escape, would not support the allegations in this indictment. This we understand to have been the request, though the form of the prayer for the instructions was that if the jury found that the officers “ had no right to arrest,” then the assault proved would not support the allegations in the indictment. If the defendant had asked no further instructions, probably no objection could have been taken to any insufficiency of the instructions given. But the party deeming it important that more full instructions should be given, and particularly as to what state of facts would not authorize a conviction, and having moved the court to that effect, we are of opinion that he had a right to the further instructions asked for, properly modified and applied to the charges found in this indictment. So far as relates to the charge of assault with intent to murder, the instructions asked ought to have been given. Where the party is charged with firing a loaded pistol with intent to murder, and from the circumstances it appears that if death had ensued, it would *619have been manslaughter only, he must be acquitted. Milton’s case, 1 East P. C. 411.

As to the main charge of an assault, he might, however, have been properly convicted, although the arrest was illegal, if the assault was of a character only justifiable under the circumstances of the case. The defendant was convicted generally of the charges in the indictment, including that of an. assault with intent to murder. This being so, the verdict must be set aside for the want of the further instructions asked for and bearing upon that point.

Upon the question, whether the defendant could, in any event, be found guilty of an assault with intent to murder both Moore and Leonard, we perceive no difficulty in that branch of the case. If the prisoner designedly fired a loaded pistol in the direction of the two, and so near them that it would probably kill them, or do them some great bodily harm, and with intent so to do, or entirely regardless which it might actually kill, the jury might properly find him guilty of the same intent as to both. New trial granted.